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Judge says no to 450-foot cell tower near BWCA, but 199-foot tower OK

  • Article by: ABBY SIMONS
  • Star Tribune
  • August 3, 2011 - 10:01 PM

In a ruling for preserving scenery over expanding the reach of cellphones, a Hennepin County judge ordered Wednesday that AT&T cannot build a 450-foot lighted cellphone tower visible from inside the Boundary Waters Canoe Area Wilderness.

But District Judge Philip Bush permitted the telecommunications company to build a 199-foot tower in the same area. Unlit and unseen from inside the federal wilderness, it would provide similar cellphone coverage without spoiling the scenic view.

The much-anticipated decision comes amid questions about how far technology should extend in pristine areas in the name of aiding public safety.

In a 58-page decision, Bush wrote that the 450-foot tower and its flashing lights "would adversely, materially and significantly impair the scenic view and aesthetic resources of the BWCAW," as well as be potentially harmful to migratory birds.

"The affected natural resource, broad scenic views with no visible signs of man, is not replaceable." Bush wrote.

The decision is a victory for Friends of the Boundary Waters Canoe Area Wilderness. The Minneapolis group repeatedly urged AT&T to build a lower tower and last year sued to block construction of the taller one.

Attorney Stephen Safranski, who represented the wilderness advocacy group for free, said the case was about AT&T and similar providers expanding wireless services "in a way that avoids unnecessary harm to the scenery and natural resources of one of our last great wilderness areas."

AT&T spokesman Marty Richter declined to say whether attorneys for AT&T planned to appeal or proceed with building the smaller tower.

During a weeklong trial in April, AT&T argued that even if occasionally spotted from inside the Boundary Waters, the taller tower was vital for public safety to provide cellphone service to residents and visitors. AT&T acquired the necessary permits from Lake County.

"We continue to believe the county's well-considered decision to approve this important public safety facility was correct," Richter said in a statement. "We're reviewing the ruling and considering our options."

Bush denied a request by Friends of the Boundary Waters to permanently restrain AT&T from building any towers in the future that could be seen from within the Boundary Waters.

Little coverage difference

The proposed tower would have been visible from at least 8 miles away during daylight hours and more than 10 miles at night from at least 10 spots within the Boundary Waters, including Pipestone Bay, Ella Hall Lake, Fall Lake and Wood Lake.

Bush rejected an AT&T argument that because cellphone towers in Ely and a water tower in Winton can be seen from Fall Lake, the visibility of the proposed tower shouldn't matter. Previous towers, Bush wrote, do not authorize the visual incursion of other scenic views.

Bush wrote that improved cellphone coverage for 911 communication is legitimate but noted that Lake County's statutes mandate high standards for towers to maintain undisturbed skies.

Bush said that when the tower was approved, AT&T incorrectly told residents that it would cover an area 16 times larger than the 199-foot tower would. In fact, the taller tower's coverage area would render just a 17 percent increase from what the smaller tower would yield.

While extending cell service into a wilderness area could have benefits, Bush reasoned, there's no case law or finding that it's a national need.

Boundary Waters visitors are instructed by the U.S. Forest Service not to rely on cellphones in emergencies and that satellite phones are available. According to Forest Service statistics, there are about 16 emergency incidents annually among 250,000 visitors in the 1.1-million-acre BWCA.

The case isn't one of a kind. Bush's ruling cited a Court of Appeals order that found the visibility of a 185-foot tower in the Lower St. Croix Riverway was "substantial evidence" of an adverse visual impact. The Koochiching County Board recently unanimously denied AT&T permission to build a 350-foot tower 3.5 miles from the edge of Voyageurs National Park. A court upheld the Duluth City Council's denial of a 195-foot tower in a wooded residential neighborhood.

Abby Simons • 612-673-4921

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